STATE OF OHIO v. MICHAEL JEROME CROWLEY, II
C.A. No. 2022-CA-59
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
May 26, 2023
[Cite as State v. Crowley, 2023-Ohio-1764.]
Trial Court Case No. 22-CR-0329 (Criminal Appeal from Common Pleas Court)
Rendered on May 26, 2023
ANDREW PARKER PICKERING, Attorney for Appellee
J. DAVID TURNER, Attorney for Appellant
HUFFMAN, J.
Michael Jerome Crowley, II, appeals from his conviction on one count of kidnapping and one count of assault on a peace officer. Crowley‘s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he could not find any potentially meritorious appellate issues and
Procedural History
{¶ 1} Crowley was indicted on April 12, 2022, on one count of rape, one count of kidnapping, and one count of aggravated burglary, all of which were felonies of the first degree, as well as one count of assault with a peace officer specification, a felony of the fourth degree. Crowley pled not guilty on April 14, 2022.
{¶ 2} On June 2, 2022, Crowley filed a motion to sever counts one and two (rape and kidnapping) from counts three and four (aggravated burglary and assault) because the allegations occurred at different places and involved different victims. On June 8, 2022, the State opposed the motion, arguing that, at separate trials, it could introduce evidence of the joined offenses as other acts evidence pursuant to
{¶ 3} Crowley filed a motion in limine on June 24, 2022, seeking to exclude evidence that he was on probation at the time of the offense and had a felony record, as reflected in Crowley‘s recorded interview with his probation officer. Crowley also sought to exclude a portion of a cruiser camera audio-recording involving a 911 call during which dispatch indicated that Crowley was on probation and a registered sex offender. The court held a hearing on Crowley‘s motions to sever and in limine. It orally denied the motion to sever counts one and two from counts three and four. The State agreed to
{¶ 4} The jury trial commenced on July 7, 2022. On July 8, 2022, the jury found Crowley guilty of kidnapping and assault on a peace officer and not guilty of rape and aggravated burglary. On August 4, 2022, when the matter was scheduled for disposition, the court notified Crowley that, due to the kidnapping conviction, there was a presumption that he be required to register as a violent offender on the Ohio violent offender database. The court thoroughly advised Crowley of his registration and notification requirements should he be placed on the database and further advised that the burden of proof to overcome the presumption was Crowley‘s. At the request of defense counsel, the matter was continued. On August 5, 2022, Crowley filed a motion objecting to the court‘s placing him on the violent offender database. On August 19, 2022, the court held a violent offender hearing. Defense counsel represented to the court that, given that there were no other alleged perpetrators of the offenses, there was no evidence to submit to rebut that Crowley was the principal offender. Defense counsel advised the court that Crowley was unable to rebut the presumption that he be placed on the Ohio violent offender database. The court overruled Crowley‘s motion.
{¶ 5} Crowley was sentenced to a minimum of six years and a maximum of nine years for kidnapping and to 15 months for assault on a peace officer, to be served consecutively, for a maximum term of ten years and three months.
Anders Standard
{¶ 6} The following is well-settled:
Upon the filing of an Anders brief, an appellate court has a duty to determine, “after a full examination of the proceedings,” whether the appeal is, in fact, “wholly frivolous.” [Anders] at 744; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue is not frivolous based upon a conclusion that the State has a strong responsive argument. State v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead, is one about which, “on the facts and law involved, no responsible contention can be made that offers a basis for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find that any issue is not wholly frivolous, we must reject the Anders brief and appoint new counsel to represent the appellant.
State v. Moody, 2d Dist. Montgomery No. 28389, 2021-Ohio-396, ¶ 4.
Anders Analysis
{¶ 7} Appellate counsel identifies three potential issues for purposes of appeal. The State did not file a responsive brief. The first potential issue is that there “is no evidence in the record that suggests that appellant was informed by either the court or his counsel that he had a right to testify in his defense at trial.”
{¶ 8} “The right to testify is an inherently personal right and is exercised or waived by the client, not the attorney.” State v. Copeland, 2d Dist. Montgomery No. 18711, 2002-Ohio-265, *2. During the State‘s case, outside of the presence of the jury, defense counsel advised the court that he did not believe that Crowley intended to testify. After the State rested, in response to a question by the court outside of the jury‘s presence
{¶ 9} “The Ohio Supreme Court has rejected the claim that a trial court must inform a defendant of his right to testify at trial.” State v. Sapp, 2d Dist. Clark No. 1999-CA-84, 2002-Ohio-6863, ¶ 149, quoting State v. Bey, 85 Ohio St.3d 487, 499, 709 N.E.2d 484 (1999). “Furthermore, a trial court is not required to inquire whether the defendant‘s waiver of that right was done knowingly and intelligently.” Id. “Such an inquiry has been deemed unnecessary, capable of causing confusion and delay, and may also be harmful by interfering with the attorney-client relationship.” State v. Brown, 11th Dist. Ashtabula No. 2016-A-0021, 2017-Ohio-9259, ¶ 56, citing Bey at 497. We agree with appellate counsel that this first proposed assigned error is wholly frivolous.
{¶ 10} The second potential issue raised by appellate counsel is that Crowley was “denied effective assistance of counsel as counsel for appellant failed to move for a dismissal pursuant to
{¶ 11} As this Court has noted:
In order to succeed on an ineffective assistance claim, a defendant must establish: (1) his trial counsel‘s performance was deficient; and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two
of the syllabus. To establish deficient performance, a defendant must show that his trial counsel‘s performance fell below an objective standard of reasonable representation. Strickland at 688; Bradley at 142. To establish prejudice, a defendant must show that there is “a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697.
State v. Whaley, 2d Dist. Clark No. 2020-CA-15, 2021-Ohio-1434, ¶ 14.
{¶ 12} Regarding a judgment of acquittal, this Court has further stated:
Crim.R. 29 pertinently states that a court should enter a judgment of acquittal for an offense “if the evidence is insufficient to sustain a conviction of such offense.” “Because, when faced with aCrim.R. 29 motion for acquittal, a trial court must view the evidence in a light most favorable to the state, ‘[f]ailure to move for an acquittal underCrim.R. 29 is not ineffective assistance of counsel where the evidence in the State‘s case demonstrates that reasonable minds can reach different conclusions as to whether the elements of the charged offense[s] have been proved beyond a reasonable doubt, and that such a motion would have been fruitless.‘” State v. Winn, 173 Ohio App.3d 202, 2007-Ohio-4327, 877 N.E.2d 1020, ¶ 13 (2d Dist.),
quoting State v. Poindexter, 2d Dist. Montgomery No. 21036, 2007-Ohio-3461, ¶ 29. * * *
State v. Hudson, 2d Dist. Greene No. 2019-CA-21, 2020-Ohio-1403, ¶ 12.
{¶ 13} The following facts were adduced at trial. Regarding the kidnapping offense, on April 1, 2022, the victim was at her apartment on East John Street in Springfield with her 11-year-old son, while her friend Megan Salyers and Salyer‘s boyfriend, Crowley, were visiting, having arrived around 3:30 p.m. The adults left to pick up sandwiches in a black Chevy Tahoe, returned to the victim‘s home, and Crowley and Salyers were drinking alcohol. Salyers and Crowley left the apartment two hours later, and the victim fell asleep on the sofa. Around 7:00 or 7:30 p.m., Crowley loudly knocked on the victim‘s door and entered her home when she opened it. The victim testified that, while her son was present, Crowley sat her down on the couch, pulled out his penis, and began hitting her in the face with it. She testified that he put his hand down her pants, penetrating her with his fingers, and that he sat on her while she told him no repeatedly and could not get away. According to the victim, Crowley hit her on both sides of her face with his hand and picked her up by her legs. She eventually got away, fled the apartment, and called 911. She observed the Chevy Tahoe leaving the scene before returning home, at which time she discovered that the screen of her television had been smashed.
{¶ 14} Regarding the assault on a peace officer, also on the evening of April 1, 2022, Sarah Maynard and Danny Ervin, who resided on Selma Road in Springfield, drove home after a brief absence and observed a black Chevy Tahoe parked in an unusual way
{¶ 15} Officers Allison Craig and Colin Matt responded immediately, and through a window they observed Crowley in the home. They ordered him to come out with his hands up and, after he did so, they ordered him to get down on the front porch. When Crowley complied, he was handcuffed. Officers Rippley and Walter subsequently arrived, and as all the officers tried to get Crowley to his feet to place him in a cruiser, he resisted. Once up, a screaming Crowley kicked his leg backwards, striking Off. Matt‘s calf and causing Matt to partially fall off the porch; his left knee struck the porch, resulting in abrasions and swelling. A video of the encounter from Craig and Matt‘s cruiser camera was played for the jury.
{¶ 16} Droplets of blood were found inside Maynard and Ervin‘s home upon their return, and blood was found inside the Tahoe. The officers learned that the plates on the Chevy Tahoe came back to Salyers. They also learned that a sexual assault had been reported the same evening, and the victim had identified Crowley as the perpetrator. The East John Street address was a five- to six-minute drive from the Selma Road address. Officers Rippley and Walter were subsequently dispatched from Selma Road to East John Street on the reported sexual assault, where they interviewed the victim and
{¶ 17}
{¶ 18} The third potential assignment of error is that the “trial court erred in denying appellant‘s motion to sever counts pursuant to
{¶ 19}
Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.
{¶ 20} “The law favors joinder to prevent successive trials, to minimize the possibility of incongruous results in successive trials before different juries, to conserve judicial resources, and to diminish the inconvenience to witnesses.” State v. Broadnax, 2d Dist. Montgomery No. 21844, 2007-Ohio-6584, ¶ 33. “Even if offenses are properly
{¶ 21} The record reflects that Crowley failed to renew his claim of prejudicial joinder. Even if we were to conclude that the failure to renew the motion arguably constituted deficient performance, we further cannot conclude, on this record, that there is a nonfrivolous argument that the failure to renew the motion prejudiced Crowley.
{¶ 22} According to the testimony, the offenses herein occurred close in time and place and in a continuing or ongoing course of conduct. Two officers who responded to the burglary on Selma Road then proceeded to talk with the victim of the kidnapping on East John Street. The black Chevy Tahoe was present at both offenses, and the plates came back to Salyers, who had been at the kidnapping victim‘s home with Crowley prior to the kidnapping. A television at the East John Street residence where the kidnapping occurred had been damaged after the victim left, and Crowley was bleeding when he was observed at the scene of the burglary; there was also blood in the Tahoe and in multiple locations inside the home of Maynard and Ervin. Based on this evidence, the trial court reasonably denied the motion to sever. Because severance was not required, we conclude that it would be wholly frivolous to argue that the trial court abused its discretion in overruling the severance motion.
Conclusion
{¶ 23} In addition to reviewing appellate counsel‘s potential assignments of error, and consistent with our duty under Anders, we have independently reviewed the entire record to determine if there are any non-frivolous appellate issues. This review includes pretrial motions and hearings, the trial transcript, exhibits, the violent offender hearing,
TUCKER, J. and LEWIS, J., concur.